EXHIBIT 2.01
SHARE PURCHASE AGREEMENT
Between
TECHTEAM GLOBAL AB,
and
SQM Nordic ab
Dated as of
January 19, 2007
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SHARE PURCHASE AGREEMENT
This Share Purchase Agreement is dated as of January 19, 2007, by
and among TechTeam Global AB, a company duly incorporated and organized under
the laws of Sweden (the "Purchaser") and SQM Nordic AB, a company duly
incorporated and organized under the laws of Sweden ("Seller"), to purchase all
of the outstanding shares of SQM Sverige AB, a company duly incorporated and
organized under the laws of Sweden (the "Company"). Certain capitalized terms
used in this Agreement have the meanings assigned to them in Article IX.
WHEREAS, Seller has approved, and deems it advisable to consummate,
the acquisition of the Company by Purchaser; and
WHEREAS, the Board of Directors of Purchaser has approved the
acquisition of the Company, which acquisition is to be effected by the purchase
of all shares of the registered capital of the Company by Purchaser upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein,
intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE I - PURCHASE AND SALE OF SHARES
Section 1.1 Sale and Transfer of Shares. Subject to the terms and conditions of
this Agreement, at the Closing, Seller shall sell, convey and deliver to
Purchaser the outstanding Shares of the Company free and clear of all
Encumbrances.
Section 1.2 The Purchase Price. Subject to the terms and conditions of this
Agreement, in consideration of the aforesaid sale, Purchaser shall pay to Seller
the aggregate cash amount of Thirty-Seven Million Three Hundred Thousand Swedish
Kronor (SEK) (SEK 37,300,000) as finally adjusted up or down as in accordance
with Exhibit 1.2 (the "Consideration").
Section 1.3 Payment of the Purchase Price.
The Seller shall, at the latest 24 hours prior to the Closing Date, deliver to
the Purchaser a pro forma calculation of the Net Cash (as defined in Exhibit
1.2) as per close of business on February 7, 2007, or if applicable, as per the
close of business on any other date two days prior to the Alternate Closing Date
(the "Preliminary Net Cash"). If the Preliminary Net Cash exceeds SEK zero (0),
the Purchase Price to be paid on Closing in accordance with this Section 1.3
shall be adjusted up with an amount corresponding to such excess and if the
Preliminary Net Cash is less than SEK zero (0) the Purchase Price to be paid on
Closing in accordance with this Section 1.3 shall be adjusted down with an
amount corresponding to such deficit (the "Preliminary Purchase Price
Adjustment"). The Purchase Price will be finally adjusted as set out in Section
1.2.
At the Closing, Purchaser shall pay to the account designated in writing by
Seller the
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amount equal to the Purchase Price, adjusted with the Preliminary Purchase Price
Adjustment as set out above, less the amount of Five Million Seven Hundred and
Thirty Thousand SEK (SEK 5,730,000), which Purchaser shall deposit into the
Account as the indemnity escrow (the "Indemnity Escrow") and held in accordance
with the terms of Section 1.4 hereof. The Purchase Price, as adjusted with the
Preliminary Purchase Price Adjustment, less the amount of the Indemnity Escrow
is referred to as the "Closing Consideration".
Section 1.4 Account and Release. At Closing, the Purchaser shall deposit the
Indemnity Escrow into an interest bearing account ("Account") with ABN AMRO in
Sweden (the "Bank"), in accordance with the Escrow Agreement attached hereto as
Exhibit 1.4. The Parties agree that Indemnity Escrow shall be released in
accordance with the following terms and conditions:
(a) On the day of the first-year anniversary of the Closing
Date, upon a mutual written instruction by the Parties, the Indemnity Escrow
shall be released to the Seller in full; unless,
(i) at the day of the first-year anniversary of the
Closing Date, the Purchaser has an unsettled claim for indemnification in
accordance with Article VIII below, for which the amount can be specified
by the Purchaser, in which case such amount shall remain on the Account
and the rest of the Indemnity Escrow shall be released by mutual written
instruction by the Parties.
(ii) if, at the day of the first-year anniversary of the
Closing Date, the Purchaser has an unsettled claim for indemnification in
accordance with Article VIII below, for which the amount cannot reasonably
be specified by the Purchaser, the Purchaser shall estimate an amount that
is reasonably corresponding to the claim, which amount shall remain on the
Account and the rest of the Indemnity Escrow shall be released to the
Seller by mutual written instruction by the Parties.
(iii) If the foregoing subsection (ii) is applicable,
the Purchaser shall, as soon as practically possible, specify the amount
of the claim, after which any amount remaining in the Indemnity Escrow
exceeding the then specified claim shall be released to the Seller by
mutual written instruction by the Parties.
(b) The Parties hereby undertake to facilitate the release of
the Indemnity Escrow in accordance with this Section 1.4.
Section 1.5 Additional Purchase Price. If the Company's revenue (as determined
in accordance with accounting principles generally accepted in Sweden) for the
2007 financial year is Ninety-three Million Five Hundred Thousand SEK (SEK
93,500,000) or greater, Purchaser shall make an additional payment to Seller of
SEK 4,200,000 (the "Additional Purchase Price").
Section 1.6 Determination and Payment of Additional Purchase Price. As soon as
practicable, but not later than 12 February 2008, the Purchaser shall cause the
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Company to deliver to the Seller a report on the Company's revenue for the 2007
financial year ("Revenue Report"). In the event the report demonstrates that the
Company's revenue exceeds 93,500,000 for the 2007 financial year, Purchaser
shall pay the Additional Purchase Price within five (5) business days
thereafter.
The Seller may challenge the figures appearing in the Revenue Report, setting
forth in writing any adjustments Seller deems appropriate, with an explanation
of the reasons for any adjustments, and setting out its calculation of the
Company's revenue for fiscal 2007. Such challenge shall be delivered to the
Purchaser in writing no later than thirty (30) days after receipt of the Revenue
Report. If no challenge has been delivered by the Seller, the Additional
Purchase Price as calculated by the Purchaser shall be binding on the Seller.
If the Purchaser does not accept the Seller's challenge, and if the parties
cannot reach an agreement within thirty (30) days thereafter, the matter shall
be referred to arbitration pursuant to Section 10.10.
ARTICLE II - THE CLOSING.
Section 2.1 The Closing. The sale and transfer of the Shares by Seller to
Purchaser shall take place at the offices of Advokatfirman Nordia KB, on
February 9, 2007, provided that all of the conditions to close have been
satisfied prior to or on such date (other than conditions which can be satisfied
only by the delivery of certificates or other documents at Closing). The Closing
will be effective at 23:59 CET on the Closing Date.
Section 2.2 Deliveries by Seller. At the Closing, Seller shall deliver to
Purchaser:
(a) a true copy of a resolution of the general meeting of
Seller, in form and in substance satisfactory to the Purchaser, approving the
sale of the Shares;
(b) all of the books and records of Seller relating to the
Company, which shall be delivered at the premises of the Company;
(c) the following executed agreements, in form and substance
satisfactory to the Purchaser:
(i) Retention Agreement and Amended Employment Agreement
of Xxxxxxxxx Xxxxxxxx;
(ii) Retention Agreement of Xxxxxxx Xxxxxxxxxxx;
(iii) Confirmation Letters regarding SQM Guide, attached
hereto as Exhibit 2.2 (c) (ii); and
(iv) Letter Agreement of Sven-Xxxx Xxxxxx, attached
hereto as Exhibit 2.2 (c) (iv);
(d) the Seller's Certificate referred to in Section 6.1 (c);
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(f) the share register of the Company and shall procure that
the board of directors of the Company enters the Purchaser as owner of the
Shares in the share register of the Company; and
(g) the resignation from the Company's Board of Directors all
representatives of Seller on the Company's Board of Directors.
Section 2.3 Deliveries by Purchaser.
(a) Before or at Closing the Purchaser shall: (i) deliver the
Closing Consideration by wire transfer in immediately available funds to a
single account designated in writing by Seller; and (ii) deliver the Indemnity
Escrow to the Bank, and
(b) Within a reasonable time, but in no event later than ten
(10) business days after Closing, Purchaser shall procure that the Seller is
released from its undertakings as guarantor for the Company's liabilities.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 3.1 Representation. The Seller represents and warrants to Purchaser that
all of the statements contained in Appendix 3 are true and complete as of the
date of this Agreement (or, if made as of a specified date, as of such date),
and will be true and complete as of the Closing Date as though made on the
Closing Date, except as specifically set forth in the Schedules to Appendix 3.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
Section 4.1 Organization. Purchaser is a company duly organized, validly
existing and in good standing under the laws of Sweden and has all requisite
corporate or other power and authority and all necessary governmental approvals
to own, lease and operate its properties and to carry on its business as now
being conducted, except where the failure to be so organized, existing and in
good standing or to have such power, authority, and governmental approvals would
not have, individually or in the aggregate, a material adverse effect on
Purchaser's ability to consummate the Transactions.
Section 4.2 Authorization; Validity of Agreement. Purchaser has full corporate
power and authority to execute and deliver this Agreement and to consummate the
Transactions. The execution, delivery and performance by Purchaser of this
Agreement and the consummation of the Transactions have been duly authorized by
the Board of Directors of Purchaser, and no other corporate action on the part
of Purchaser is necessary to authorize the execution and delivery by Purchaser
of this Agreement or the consummation of the Transactions. This Agreement has
been duly executed and delivered by Purchaser, and, assuming due and valid
authorization, execution and delivery hereof by the Seller, is a valid and
binding obligation of
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Purchaser, enforceable against Purchaser in accordance with its terms except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws of general application affecting
enforcement of creditors' rights generally and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefore may be brought.
Section 4.3 Consents and Approvals; No Violations. Except for the filings,
permits, authorizations, consents and approvals contemplated by this Agreement
and filings by Purchaser's parent corporation, TechTeam Global, Inc. with the
United States Securities and Exchange Commission, none of the execution,
delivery or performance of this Agreement by Purchaser, the consummation by
Purchaser of the Transactions or compliance by Purchaser with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the certificate of incorporation or by-laws of Purchaser, (ii)
require any filing with, or permit, authorization, consent or approval of, any
Governmental Entity, (iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which Purchaser is a
party or by which any of them or any of its properties or assets may be bound,
or (iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Purchaser or any of their properties or assets, excluding from the
foregoing clauses (ii), (iii) and (iv) such violations, breaches or defaults
which would not, individually or in the aggregate, have a material adverse
effect on Purchaser's ability to consummate the Transactions or which arise from
the regulatory status of the Company.
Section 4.4 Brokers or Finders. Neither Purchaser nor any of its Affiliates has
entered into any agreement or arrangement entitling any agent, broker,
investment banker, financial advisor or other firm or Person to any broker's or
finder's fee or any other commission or similar fee in connection with any of
the Transactions.
ARTICLE V - COVENANTS
Section 5.1 Interim Operations of the Company. The Seller agrees that, after the
date hereof and prior to the Closing Date, except (i) as expressly provided in
this Agreement, or (ii) as may be agreed in writing by Purchaser:
a) the business of the Company shall be conducted in the same manner as
heretofore conducted and only in the ordinary course, and Seller
shall use its best efforts and shall direct the managing director of
the Company to use her best efforts to preserve the business
organization of the Company, keep available the services of the
current officers and employees of the Company and maintain the
existing relations with customers, suppliers, creditors, business
partners and others having business dealings with the Company, to
the end that the goodwill and ongoing business of the Company shall
be unimpaired at the Closing Date;
b) the Company shall not: (i) amend its articles of association or
by-laws or similar organizational documents, (ii) issue, sell,
transfer, pledge, dispose of or
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encumber any shares of any class or series of its capital, or
securities convertible into or exchangeable for, or options,
warrants, calls, commitments or rights of any kind to acquire, any
shares of any class or series of its capital, (iii) declare, set
aside or pay any dividend or other distribution payable in cash,
stock or property with respect to any shares of any class or series
of its capital; (iv) split, combine or reclassify any shares of any
class or series of its capital; or (v) redeem, purchase or otherwise
acquire directly or indirectly any shares of any class or series of
its capital, or any instrument or security which consists of or
includes a right to acquire such shares;
c) the Company shall not organize any new subsidiary or acquire any
capital shares or other equity securities, or equity or ownership
interest in the business, of any other Person;
d) the Company shall not modify, amend or terminate any of its material
contracts or waive, release or assign any material rights or claims,
except in the ordinary course of business and consistent with past
practice;
e) the Company shall not: 1. incur or assume any long-term debt, or
except in the ordinary course of business, incur or assume
short-term Indebtedness exceeding SEK 100,000 in the aggregate from
the date hereof until the Closing; 2. pay, repay, discharge,
purchase, repurchase or satisfy any Indebtedness issued or
guaranteed by the Company, except as required by the terms thereof;
3. modify the terms of any Indebtedness or other liability; 4.
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of
any other Person, unless in the ordinary course of business and
consistent with past practice; 5. make any loans, advances or
capital contributions to, or investments in, any other Person; 6.
enter into any material commitment or transaction (including any
capital expenditure or purchase, sale or lease of assets or real
estate); 7. write down the value of any inventory or write off as
uncollectible any notes or accounts receivable, or 8. change any of
its banking or safe deposit arrangements;
f) the Company shall not lease, license, mortgage, pledge or encumber
any assets other than in the ordinary and usual course of business
and consistent with past practices, or transfer, sell or dispose of
any assets other than in the ordinary and usual course of business
and consistent with past practice or dispose of or permit to lapse
any rights to any Intellectual Property;
g) the Company shall duly file all Tax Returns that are required to be
filed and shall duly pay or cause to be duly paid in full or make or
cause to be made provision in accordance with Swedish accounting
principles (or there has been paid or provision has been made on
their behalf) for the payment of all Taxes for all periods or
portions thereof ending on or before the Closing Date. All such Tax
Returns shall be correct and complete and accurately reflect all
liability for Taxes for the periods covered thereby;
h) the Company shall not make any change in the compensation payable or
to become payable to any of its officers, directors, employees,
agents or consultants or to Persons providing management services,
or enter into or
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amend any employment, collective bargaining, severance, consulting,
termination or other agreement with, or employee benefit plan for,
or make any loan or advance to, any of its officers, directors,
employees, Affiliates, agents or consultants or make any change in
its existing borrowing or lending arrangements for or on behalf of
any of such Persons pursuant to an employee benefit plan or
otherwise, other than travel and entertainment advances made in the
ordinary course of business and consistent with past practice;
i) the Company shall not (i) pay or make any accrual or arrangement for
payment of any pension, retirement allowance or other employee
benefit pursuant to any existing plan, agreement or arrangement to
any officer, director, employee or Affiliate or pay or agree to pay
or make any accrual or arrangement for payment to any officer,
director, employee or Affiliate of any amount relating to unused
vacation days, except to the extent the Company is unconditionally
obligated to do so on the date hereof, (ii) adopt or pay, grant,
issue, accelerate or accrue salary or other payments or benefits
pursuant to any pension, profit-sharing, bonus, extra compensation,
incentive, deferred compensation, stock purchase, stock option,
stock appreciation right, group insurance, severance pay, retirement
or other employee benefit plan, agreement or arrangement, or any
employment or consulting agreement with or for the benefit of any
director, officer, employee, agent or consultant, whether past or
present, except to the extent the Company is unconditionally
obligated to do so on the date hereof, or (iii) amend in any
material respect any such existing plan, agreement or arrangement in
a manner inconsistent with the foregoing;
j) the Company shall not permit any insurance policy naming it as a
beneficiary or a loss payable payee to be cancelled or terminated
without notice to Purchaser;
k) the Company shall not enter into any contract or transaction
relating to the purchase of assets other than in the ordinary course
of business and consistent with past practice;
l) the Company shall not pay, repurchase, discharge or satisfy any of
its claims, liabilities or obligations (absolute, accrued, asserted
or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction in the ordinary course of business and
consistent with past practice, or claims, liabilities or obligations
reflected or reserved against in, or contemplated by, the Financial
Statements or incurred since the Balance Sheet Date in the ordinary
course of business;
m) the Company shall not adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company;
n) the Company shall not (i) change any of the accounting methods used
by it unless required by Swedish accounting principles, (ii) make
any election relating to Taxes, change any election relating to
Taxes already made, adopt any accounting method relating to Taxes,
change any accounting method relating to Taxes unless required by
Swedish accounting principles, or (iii)
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enter into any closing agreement relating to Taxes, settle any claim
or assessment relating to Taxes or consent to any claim or
assessment relating to Taxes or any waiver of the statute of
limitations for any such claim or assessment;
o) the Company shall not take, or agree to or commit to take, any
action that would or is reasonably likely to result in any of the
conditions to the Closing set forth in Article VI not being
satisfied, or would make any representation or warranty of the
Seller contained herein inaccurate in any respect at, or as of any
time prior to, the Closing Date, or that would materially impair the
ability of the Purchaser or Sellers to consummate the Closing in
accordance with the terms hereof or materially delay such
consummation; and
p) the Seller shall not enter into any agreement, contract, commitment
or arrangement to do any of the foregoing, or authorize, recommend,
propose or announce an intention to do, any of the foregoing.
Section 5.2 Access.
Between the date of this Agreement and the Closing, the Seller shall require
that Company (i) affords Purchaser and its authorized representatives full and
complete access to all books and records of the Company and, after the board of
directors of Seller sends out notice of the shareholders' meeting referred to in
Sections 6.2,, to the offices and premises of the Company, (ii) permits
Purchaser to make such inspections and to make copies of such books and records
as it may reasonably require, and (iii) furnishes Purchaser with such financial
and operating data and other information as Purchaser may from time to time
reasonably request. Purchaser and its authorized representatives shall conduct
all such inspections in a manner that will minimize disruptions to the business
and operations of the Company, including by providing reasonable prior notice
and conducting such inspections during normal business hours.
Section 5.3 Efforts and Actions to Cause Closing to Occur.
Prior to the Closing, upon the terms and subject to the conditions of this
Agreement, Purchaser and Seller shall use their respective reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done and cooperate with each other in order to do, all things necessary, proper
or advisable (subject to any applicable laws) to consummate the Closing as
promptly as practicable including, but not limited to the preparation and filing
of all forms, registrations and notices required to be filed to consummate the
Closing and the taking of such actions as are necessary to obtain any requisite
approvals, authorizations, consents, orders, licenses, permits, qualifications,
exemptions or waivers by any third party or Governmental Entity. In addition, no
Party hereto shall take any action after the date hereof that could reasonably
be expected to materially delay the obtaining of, or result in not obtaining,
any permission, approval or consent from any Governmental Entity or other Person
required to be obtained prior to Closing.
Section 5.4 Notification of Certain Matters.
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The Seller and the Company shall give notice to Purchaser promptly after
becoming aware of (i) the occurrence or non-occurrence of any event whose
occurrence or non-occurrence would be likely to cause either (A) any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Closing Date or (B) any condition set forth in Article VI to be unsatisfied in
any material respect at any time from the date hereof to the Closing Date, or
(ii) any material failure of the Seller to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this section
shall not limit or otherwise affect the remedies available hereunder to the
Party receiving such notice.
Section 5.5 Seller Non-Compete.
(a) Without the express prior written consent of Purchaser,
Seller, its Affiliates and Sven-Xxxx Xxxxxx shall not, at any time during the
three-year period immediately following the Closing Date, (i) directly or
indirectly, own, manage, control or participate in the ownership, management or
control of, or be related or otherwise affiliated in any manner with, any
business similar to that engaged in by the Company in the territory of Sweden;
(ii) directly or indirectly, on their own behalf or on behalf of any other
Person or business, solicit or call on any client or customer of the Company
with respect to services that the Company or Purchaser are currently providing
to any of their clients or customers, or (iii) interfere in any manner with the
contractual or business relationship between the Company and any of its clients
or customers.
(b) Without the express prior written consent of Purchaser,
Seller, its Affiliates and Sven-Xxxx Xxxxxx shall not, at any time during the
three-year period immediately following the Closing Date, directly or
indirectly, on their own behalf or on behalf of any other Person or business,
solicit or employ any employee of the Company, or induce any employee of the
Company to leave his or her employment with the Company.
(c) Purchaser is aware that Seller and Sven-Xxxx Xxxxxx have
or may in the future have ownership interests in SQM Finland Oy, Help Desk
Institute Nordic Oy, Nordic Institute for Professionals AB, and SizeIT Drift AB
(collectively "Other Entities"). Purchaser acknowledges that an ownership
interest in the Other Entities alone does not violate Section 5.5(a).
Section 5.6 Subsequent Actions. If at any time after the Closing Purchaser will
consider or be advised that any deeds, instruments of conveyance, assignments,
assurances or any other actions or things are necessary or desirable (i) to
vest, perfect or confirm ownership (of record or otherwise) in Purchaser, its
right, title or interest in, to or under any or all of the Shares, (ii) to vest,
perfect or confirm ownership (of record or otherwise) in the Company, any of its
rights, properties or assets or (iii) otherwise to carry out this Agreement,
Seller and the Company shall execute and deliver all deeds, bills of sale,
instruments of conveyance, powers of attorney, assignments and assurances and
take and do all such other actions and things as may be requested by Purchaser
in order to vest, perfect or confirm any and all right, title and interest in,
to and under such rights, properties or assets in Purchaser or the Company or
otherwise to carry out this Agreement.
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Section 5.7 Publicity. The initial press release with respect to the execution
of this Agreement shall be a joint press release acceptable to Purchaser and
Seller. Neither Seller, the Company, Purchaser nor any of their respective
Affiliates shall issue or cause the publication of any press release or other
public announcement with respect to this Agreement or the Transactions without
prior consultation with the other Party, except as may be required by law or by
any listing agreement with a national securities exchange or trading market.
Section 5.8 Confidentiality. The Parties undertake not to, without the prior
written consent of the other Party, disclose the content or existence of this
Agreement or transactions or circumstances anticipated in this Agreement or any
ancillary matter. Regardless of what is otherwise set forth in this Section 5.8,
the Parties shall not be prevented from disclosing such information as (i) they
are under an obligation to disclose pursuant to applicable law or applicable
stock exchange regulation; (ii) which was generally available to the public or
has become - through no act or failure of the disclosing Party - public
information or generally available to the public; or (iii) which is necessary in
order to safeguard the disclosing Party's interests in arbitration pursuant to
Section 8.13 below.
Notwithstanding the aforesaid, Seller is entitled to inform its shareholders
about the existence and contents of this Agreement, in connection with a general
shareholders meeting.
Section 5.9 SQM name. The Seller undertakes not to use the name SQM in any
actions of business or marketing. For the avoidance of doubt, it is noted that
Seller has the right to continue use SQM in its registered firm.
Section 5.10 Meetings with customers. The Seller shall, prior to the Closing
Date, set up meetings between the Purchaser and three of the Company's five
largest customers.
Section 5.11 Post-Closing Operation of the Company. The Purchaser agrees that,
during the period from the Closing Date to and including December 31, 2007 (the
"Earn-out Period"), it will (a) maintain the Company as a wholly owed subsidiary
of Purchaser, and (b) exercise good faith and fair dealing in its transactions
with the Company regarding the Company's revenue growth during 2007. Purchaser
and Seller acknowledge that the Purchaser intends to integrate and modify
business functions of the Purchaser and the Company during the Earn-out Period
to the extent that such integration or modification can be accomplished without
having a negative effect on the revenue of the Company. Consistent with the
preceding provisions of this Section 5.11, during the Earn-out Period, Purchaser
shall:
(a) maintain Sven-Xxxx Xxxxxx on the Board of Directors of the
Company to represent the Seller;
(b) use reasonable efforts to maintain the relations and good
will with suppliers, customers, employees, and others having business relations
with the Company;
(c) except with the prior written consent of the Seller's
Representative (which may be given or withheld in each case at the Seller's
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Representative's reasonable discretion) for actions having an materially adverse
effect on the revenue of the Company, allow the managing director of the Company
to manage the day-to-day operations of the business of the Company in accordance
with its ordinary course (subject always to the managing director acting in
accordance with the terms of her service contract);
(d) make available reasonable working capital to the Company
for the purpose of its business, on normal commercial terms;
(e) enable the revenue of the Company to be segregated and
separately identified from the Purchaser's revenue;
(f) not dispose of the business of the Company or any part of
the business of the Company; and
(g) not restrict the ability of the managing director to
recruit such further employees of the business of the Company as she shall see
fit (having regard to the reasonable requirements of the business of the
Company) from time to time.
Subject to the foregoing, after the Closing Date, Purchaser will operate the
Company in its sole discretion.
ARTICLE VI - CONDITIONS
Section 6.1 Conditions to Obligations of Purchaser to Effect the Closing.
The obligations of Purchaser to consummate the Closing shall be subject to the
satisfaction on or prior to the Closing Date of each of the following
conditions:
(a) No Governmental Entity shall have issued any order, decree
or ruling or taken any other action, and there shall not be any statute, rule
or regulation, restraining, enjoining or prohibiting the consummation of the
Transactions, and there shall not be overtly threatened or pending any suit,
action or proceeding by any Governmental Entity to enjoin, restrain or prohibit
the Transactions, or that would be reasonably likely to prevent or make illegal
the consummation of the transactions contemplated by this Agreement.
(b) All of the representations and warranties of the Seller
set forth in this Agreement shall be true and complete in all material respects
as of the date of this Agreement and as of the Closing Date.
(c) The Seller has delivered to Purchaser at the Closing a
certificate, dated the as of Closing Date, in form and substance satisfactory
to Purchaser, to the effect that, as of the Closing Date, (i) all of the
representations and warranties of the Seller set forth in this Agreement are
true and complete, (ii) there has not occurred any Material Adverse Change (or
any development that, insofar as reasonably can be foreseen, is reasonably
likely to result in any material adverse change) in the consolidated financial
condition, businesses, results of operations or prospects of the Company, taken
as a whole, and (iii) the Seller has performed all
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obligations required under this Agreement to be performed by it at or prior to
the Closing.
(d) There shall not have occurred any Material Adverse Change
(or any development that, insofar as can be foreseen, is likely to result in
any material adverse change) in the consolidated financial condition,
businesses, results of operations or prospects of the Company.
(e) Delivery of the agreements set forth in Section 2.2 (c).
(f) The Seller shall not have failed to perform in any
material respect any obligation or to comply in any material respect with any
agreement or covenant to be performed or complied with by the Seller under this
Agreement.
(g) Seller shall have fulfilled its obligations under Section
5.10 above.
(h) All outstanding loans or other financing liabilities or
obligations owed by the Company to a member of the Seller's group and all
outstanding loans or other financing liabilities or obligations owed to the
Company by a member of the Seller's group shall have been settled.
The foregoing conditions are for the sole benefit of Purchaser, may be waived by
Purchaser, in whole or in part, at any time and from time to time in the sole
discretion of Purchaser. The failure by Purchaser at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right.
Section 6.2 Approval by the Seller's Shareholders. The Closing of this Agreement
and the Transactions contemplated herein is conditional upon the shareholders of
the Seller authorizing the Closing of the Agreement at a general shareholders
meeting.
Section 6.3 Mutual Agreement Schedule. The Closing of this Agreement is
conditioned on the Parties reaching, prior to the Closing Date, mutual agreement
on (1) the methodology for the management of the risk of redundancy of employees
working on the Company's contract with HP supporting Ericsson, and (2) the
definition of the actions of Purchaser that could adversely affect the revenue
of the Company for the 2007 financial year. These mutual agreements will be
attached to this Agreement as Exhibit 6.3.
ARTICLE VII - TERMINATION
Section 7.1 Approval by shareholders of Seller. If the shareholders of the
Seller have not approved the entry into this Agreement in accordance with
Section 6.2 by or on the Closing Date, another date for Closing shall be set,
which shall occur twenty-one (21) calendar days after the Closing Date
("Alternate Closing Date"). If the foregoing condition precedent is not
satisfied by or on the Alternate Closing Date, this Agreement shall cease to
have effect without any right to compensation for any for the Parties from the
other.
13
Section 7.2 Customer relationships. If any of the customers met by Purchaser in
meetings arranged under Section 5.10 announces its intention to terminate its
relationship with the Company or expresses significant concern regarding the
continuation of the relationship between the Company and the customer, the
Purchaser shall be entitled to terminate the Transactions.
Section 7.3 Termination. The Transactions may be terminated or abandoned at any
time prior to the Closing Date:
(a) By the mutual written consent of Purchaser and the Seller,
or the failure of the Purchaser and Seller to mutually agree on Exhibit 6.3 by
the Closing Date;
(b) By the Seller:
(i) if Purchaser has breached in any material respect
any of its representations, warranties, covenants or other agreements
contained in this Agreement, which breach cannot be or has not been cured
by the Closing Date after the giving of written notice by the Company to
Purchaser specifying such breach; or
(ii) on or after March 5, 2007, if the Closing shall not
have theretofore occurred and the failure of the Closing to occur is not
the result of a breach of a representation, warranty or covenant by any
Seller; or
By Purchaser:
(i) if Seller or the Company shall have breached any
representation, warranty, covenant or other agreement contained in this
Agreement which would give rise to the failure of a condition set forth in
Article VI;
(ii) if any representation or warranty shall become
untrue in any material respect; or
(iii) on or after March 5, 2007, if the Closing shall
not have theretofore occurred and the failure of the Closing to occur is
not the result of a breach of a representation, warranty or covenant by
Purchaser.
Section 7.4 Effect of Termination. In the event of the termination or
abandonment of the Transactions by any Party hereto pursuant to the terms of
this Agreement, written notice thereof shall forthwith be given to the other
Party specifying the provision hereof pursuant to which such termination or
abandonment of the Transactions is made, and there shall be no liability or
obligation thereafter on the part of Purchaser or the Seller except (a) for
fraud or for breach of this Agreement prior to such termination or abandonment
of the Transactions and (b) as set forth in Section 10.1.
ARTICLE VIII - INDEMNIFICATION
14
Section 8.1 Indemnification; Remedies. The Seller shall indemnify, defend and
hold harmless the Purchaser from and against and in respect of 100% of all
Purchaser Losses.
Section 8.2 Notice of Claim; Defense. Purchaser shall give Seller prompt notice
of any third-party claim that may give rise to any indemnification obligation
under this Article VI, together with the estimated amount of such claim. The
Seller shall have the right to assume the defense (at Seller's expense) of any
such claim through counsel approved in writing by the Purchaser. The Seller
shall be liable for any reasonable fees and expenses of counsel employed by
Purchaser for any period during which Seller have not assumed the defense of any
such third-party claim (other than during any period in which Purchaser will
have failed to give notice of the third-party claim as provided above). If
Seller assumes such defense, Purchaser shall have the right to participate in
the defense thereof and to employ counsel, at its own expense, separate from the
counsel employed by Seller, it being understood that Seller shall control such
defense. If Seller chooses to defend or prosecute a third-party claim, Purchaser
shall cooperate in the defense or prosecution thereof, which cooperation shall
include, to the extent reasonably requested by Seller, the retention, and the
provision to Seller, of records and information reasonably relevant to such
third-party claim, and making employees of the Company available on a mutually
convenient basis to provide additional information and explanation of any
materials provided hereunder. If Seller chooses to defend or prosecute any
third-party claim, Purchaser shall agree to any settlement, compromise or
discharge of such third-party claim that Seller may recommend and that, by its
terms, discharges Purchaser and the Purchaser's Affiliates from the full amount
of liability in connection with such third-party claim; provided, however, that,
without the consent of Purchaser, Seller shall not consent to, and Purchaser
shall not be required to agree to, the entry of any judgment or enter into any
settlement that (i) provides for injunctive or other non-monetary relief
affecting Purchaser or any Affiliate of Purchaser, or (ii) does not include as
an unconditional term thereof the giving of a release from all liability with
respect to such claim by each claimant or plaintiff to Purchaser.
Section 8.3 Notice of claims. No claim shall entitle the Purchaser to
indemnification unless notice in writing of any such claim, accompanied by
reasonable particulars thereof specifying the nature of the claim and the amount
of the claim, has been given to the Seller within ninety (90) days from the date
when the Purchaser became aware of the circumstances giving rise to the claim,
and in any event no later than the time limit stipulated in Section 8.6 below.
Any such claim which may be made, which has not been previously satisfied,
settled or withdrawn, shall be deemed to have been withdrawn six months
subsequent to when the claim was made, unless legal proceedings in respect
thereof have by then been commenced against the Seller.
Section 8.4 Purchaser's Knowledge. The Purchaser is not entitled to make any
claim for damages or indemnification under this Agreement based on any
circumstance of which the Purchaser, at the date of this Agreement, had
knowledge. Such knowledge of the Purchaser shall be deemed to include (i) the
knowledge of each of the officers and directors of the Purchaser and its
Affiliates and the Purchasers professional advisors, and (ii) all information
provided in the Data Room.
15
Section 8.5 Limitations On Amount. Seller shall have no liability for damages or
indemnification under this Article VIII until the total amount of all claims
with respect to such matters exceeds Five Hundred Thousand SEK (SEK 500,000). If
the amount of all claims exceeds such amount, Purchaser shall be compensated for
all claims.
The maximum amount for which Seller may be liable shall be 25% of the
Consideration.
Section 8.6. Time Limitation. The Seller will not have any liability for
damages, indemnification or otherwise with respect to any representation or
warranty contained in Article III unless on or before the first-year anniversary
of the Closing Date, Purchasers notifies the Seller of the claim in writing,
accompanied by reasonable particulars thereof specifying the nature of the claim
and, if reasonably possible, the amount of the claim.
Section 8.7 Remedies. Any and all damage or indemnification payments made by
Seller to Purchaser, under this Agreement, will be deemed to constitute a
reduction of the Consideration. Purchaser is not entitled to any other remedy
than such reduction of the Consideration.
Section 8.8 Sale of Goods Act. The Parties agree that the provisions under the
Swedish Sale of Goods Act (Koplag (1990:931)) regarding the Purchaser's
obligation to examine the goods after delivery, fault in the goods and remedies
available to the Parties have been substituted by Purchaser's examination of the
Company prior to the entering into of this Agreement and the provisions of this
Article VIII.
Section 8.9 Redundancy Indemnity. Notwithstanding the limitations set out in
this Article VIII, the Seller shall indemnify and hold harmless the Purchaser
from all reasonable costs, associated with the termination of employment of any
employees as a result of HP terminating the Company's subcontract relationship
with Ericsson .
ARTICLE IX - DEFINITIONS AND INTERPRETATION
Section 9.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context clearly requires otherwise:
"Account" has the meaning set forth in Section 1.4.
"Additional Purchase Price" or "APP" shall have the meaning set out
in Section 1.5
"Affiliate" shall mean a Person that directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
"Agreement" or "this Agreement" shall mean this Share Purchase
Agreement, together with the Exhibits, Appendices and Schedules hereto.
16
"Alternate Closing Date" has the meaning set forth in Section 7.1.
"Balance Sheet" shall mean the most recent audited balance sheet of
the Company.
"Balance Sheet Date" shall mean October 31, 2006.
"Bank" has the meaning set forth in Section 1.4.
"Business Days" shall mean a day other than a Saturday or Sunday or
a public holiday when the banks are not open in Sweden.
"Consideration" has the meaning set forth in Section 1.2.
"Indemnity Escrow" has the meaning set forth in Section 1.3.
"Closing" shall mean the closing referred to in Section 2.1.
"Closing Consideration" has the meaning set forth in Section 1.3.
"Closing Date" shall mean the date on which the Closing occurs.
"Company" has the meaning set forth in the Preamble.
"Company Intellectual Property" shall mean all Intellectual Property
that is currently owned by the Company, used in the business of the Company or
that is necessary or useful to conduct the business of the Company as presently
conducted or as currently proposed to be conducted.
"Computer Software" shall mean computer software programs, databases
and all documentation related thereto.
"Computer System" means the computer hardware, computer data and
Computer Software used by the Company in the conduct of its business;
"Consideration" has the meaning set forth in Section 1.2.
"Copyrights" shall mean registered and unregistered copyrights
(including those in computer software and databases), rights of publicity and
all registrations and applications to register the same.
"Data Room" shall mean the data room provided to the Purchaser, at
the offices of Advokatfirman Nordia KB for the due diligence review and the
information provided therein, which information is listed in the Data Room index
attached hereto as Exhibit 8.4.
"Defect" shall mean a defect or impurity of any kind, whether in
development, design, manufacture, processing, or otherwise, including any
dangerous propensity associated with any reasonably foreseeable use of a
product, or the failure
17
to warn of the existence of any defect, impurity, or dangerous propensity.
"Employee Benefit Plan" shall mean all benefits granted to employees
of the Company other than salaries and/or wages.
"Encumbrances" shall mean any and all liens, charges, security
interests, options, claims, mortgages, pledges, proxies, voting trusts or
agreements, obligations, understandings or arrangements or other restrictions on
title or transfer of any nature whatsoever.
"Escrow Agreement" shall mean the agreement between the Seller and
the Purchaser and the Bank attached hereto as Exhibit 1.4.
"Environmental Law" shall mean Swedish or local law and regulations
relating to pollution, protection or preservation of human health or the
environment including ambient air, surface water, ground water, land surface or
subsurface strata, and natural resources, and including each law and regulation
relating to emissions, discharges, releases or threatened releases of materials
hazardous to the environment, or otherwise relating to the manufacturing,
processing, distribution, use, treatment, generation, storage, containment
(whether above ground or underground), disposal, transport or handling of
materials hazardous to the environmental, or the preservation of the environment
or mitigation of adverse effects thereon and each law and regulation with regard
to record keeping, notification, disclosure and reporting requirements
respecting materials hazardous to the environment.
"Financial Statements" shall mean (a) the audited annual reports of
the Company in each of the years 2003 through 2005, including the notes thereto,
all as certified by Ernst & Young, independent certified public accountants,
whose reports thereon are included therein, and (b) the unaudited balance sheet
of the Company as of September 30, 2006 and unaudited statements of income,
shareholder' equity and cash flows for the period then ended, including the
notes thereto, which have been provided in the Data Room.
"Governmental Entity" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency in any country.
"Indebtedness" shall mean (i) all indebtedness for borrowed money or
for the deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (ii) any other indebtedness that is
evidenced by a note, bond, debenture or similar instrument, (iii) all
obligations under financing leases, (iv) all obligations in respect of
acceptances issued or created, (v) all liabilities secured by any lien on any
property, and (vi) all guarantee obligations.
"Intellectual Property" shall mean all of the following: Patents,
utility models, xxxxx patents, Trademarks, design rights, trade names, service
names, business names, Copyrights, rights in the nature of copyright, resale
rights, rental rights, lending rights, moral rights, database rights, domain
names, semi-conductor topography rights, know-how, rights in Trade Secrets and
confidential information,
18
Licenses, rights protecting reputation and goodwill, rights in unfair
competition and all other intellectual property rights and analogous rights as
may exist anywhere in the world for the full term of the rights concerned
together with all reversions, revivals, extensions and renewals of such rights
(whether registered or not); all registrations and pending registrations
relating to any such rights, the benefit of any pending applications for any
such registrations and the right to apply for registrations of such rights; and
all rights of action, powers or benefits belonging or accrued in relation to
such rights (including the right to xxx for and recover damages for past
infringements);
"Key Employees" shall mean any and all of Xxxxxxxxx Xxxxxxxx,
Xxxxxxx Xxxxxxxxxxx and Xxxxxx Xxxxxxx.
"Knowledge of Seller" concerning a particular subject, area or
aspect of the Company's business or affairs shall mean the knowledge of the
managing director and other directors of the Company and all knowledge which was
or could have been obtained upon inquiry by such persons of those employees of
the Company whose duties would, in the normal course of the Company's affairs,
result in such employees having knowledge concerning such subject, area or
aspect.
"Lease" shall mean each lease pursuant to which the Company leases
any real or personal property.
"Licenses" shall mean all licenses and agreements pursuant to which
the Company has acquired rights in or to any Trademarks, Patents or Copyrights,
or other Intellectual Property Rights or licenses and agreements pursuant to
which the Company has licensed or transferred the right to use any of the
foregoing.
"Material Adverse Change" shall mean any adverse change or effect
relation to the Company's assets, liabilities, business or operation, or series
or combination thereof, involving more than Five Hundred Thousand (SEK 500,000)
SEK.
"Party" shall mean Purchaser and Seller individually and "Parties"
shall mean Purchaser and Seller jointly.
"Patents" shall mean all issued patents and pending patent
applications, patent disclosures, and any and all divisions, continuations,
continuations-in-part, reissues, reexaminations, and extension thereof, any
counterparts claiming priority therefrom, utility models, patents of
importation/confirmation, certificates of invention and like statutory rights.
"Person" shall mean a natural person, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Entity or other entity
or organization.
"Preliminary Net Cash" has the meaning set forth in Section 1.3.
"Preliminary Purchase Price Adjustment" has the meaning set forth in
Section 1.3.
19
"Purchase Price" shall mean Thirty-seven Million Three Hundred
Thousand Swedish Kronor (SEK) (SEK 37,300,000).
"Purchaser" has the meaning set forth in the Preamble.
"Purchaser Losses" shall mean any and all actual losses,
liabilities, damages, judgments, settlements and expenses (including interest
and penalties recovered by a third party with respect thereto and reasonable
attorneys' fees and expenses and reasonable accountants' fees and expenses
incurred in the investigation or defense of any of the same or in asserting,
preserving or enforcing any of the rights of Purchaser arising under Article VI)
incurred by the Company or the Purchaser that arise out of:
(i) any breach by Seller of any of such Seller's
representations and warranties contained in or made by or pursuant to this
Agreement; and
(ii)any breach by Seller of any of such Seller's
covenants in this Agreement that survive the Closing.
"SEK" shall mean the Swedish Kronor, the legal currency of Sweden.
"Seller's Representative" shall mean Sven-Xxxx Xxxxxx.
"Shares" shall means 100% of the ownership interest issued by the
Company, and representing all the share capital and rights and interest
attaching thereto.
"Tax" or "Taxes" shall mean all taxes, charges, fees, duties,
levies, penalties or other assessments imposed by any federal, state, local or
foreign Governmental Entity (including, without limitation, Sweden), including
income, gross receipts, excise, property, sales, gain, use, license, custom
duty, unemployment, capital stock, transfer, franchise, payroll, withholding,
social security, minimum estimated, profit, gift, severance, value added,
disability, premium, recapture, credit, occupation, service, leasing,
employment, stamp and other taxes, and shall include interest, penalties or
additions attributable thereto or attributable to any failure to comply with any
requirement regarding Tax Returns.
"Tax Return" shall mean any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any such
document prepared on a consolidated, combined or unitary basis and also
including any schedule or attachment thereto, and including any amendment
thereof.
"Trademarks" shall mean registered and unregistered trademarks,
trade dress, service marks, logos, trade names, corporate names and all
registrations and applications to register the same.
"Trade Secrets" shall mean all trade secrets including business
information which are kept secret by the Company.
20
"Transactions" shall mean all the transactions provided for or
contemplated by this Agreement.
Section 7.2 Interpretation.
(a) When a reference is made in this Agreement to a section or
article, such reference shall be to a section or article of this Agreement
unless otherwise clearly indicated to the contrary.
(b) Whenever the words "include", "includes" or "including"
are used in this Agreement they shall be deemed to be followed by the words
"without limitation."
(c) The meaning assigned to each term defined herein shall be
equally applicable to both the singular and the plural forms of such term, and
words denoting any gender shall include all genders. Where a word or phrase is
defined herein, each of its other grammatical forms shall have a corresponding
meaning.
(d) A reference to any Party to this Agreement or any other
agreement or document shall include such Party's successors and permitted
assigns.
(e) As used in this Agreement, any reference to any event,
change or effect being material or having a material adverse effect on or with
respect to any entity (or group of entities taken as a whole) means such event,
change or effect is materially adverse to (i) the prospects, consolidated
financial condition, businesses or results of operations of such entity as a
whole (or, if used with respect thereto, of such group of entities taken as a
whole) or (ii) the ability of such entity (or group) to consummate the
Transactions.
(f) The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties, and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any provisions
of this Agreement.
ARTICLE X - MISCELLANEOUS
Section 10.1 Fees and Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the Transactions shall be paid by
the Party incurring such expenses.
Section 10.2 Amendment and Modification. This Agreement may be amended, modified
and supplemented in any and all respects, but only by a written instrument
signed by the Parties expressly stating that such instrument is intended to
amend, modify or supplement this Agreement.
Section 10.3 Notices. All notices and other communications hereunder shall be in
21
writing and shall be deemed given when delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service, such as Federal Express,
to the Parties at the following addresses (or at such other address for a Party
as shall be specified by such Party by like notice):
if to Seller, to:
SQM Nordic AB
Box 23004
XX-000 00 XXXXXXXXX
XXXXXX
Attention: Sven-Xxxx Xxxxxx
Telephone: x00 (0)0 000 000 00
Telecopy: x00 (0)0 00000000
with a copy to:
Advokatfirman Nordia KB
Box 70389
XX-000 00 XXXXXXXXXXXXXXX
Attention: Xxxxxx Xxxxxx / Xxxxxx Xxxxxxx
Telephone: x00 (0)0 000 00 000
Telecopy: x00 (0)0 000 00 000
and
if to Purchaser, to:
TechTeam Global AB
X/X XxxxXxxx Xxxxxx XX/XX
Xxxxxxxxxxxxxxxxxxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attention: Christoph Neut
Telephone: 00 0 000 00 00
Telecopy: 32 2 726 05 45
with a copy to:
TechTeam Global, Inc.
00000 X. 00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
Attention: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Section 10.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by Parties
and delivered to the other Party.
22
Section 10.5 Entire Agreement; No Third Party Beneficiaries. This Agreement (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the Parties with respect to the
subject matter hereof and thereof; and (b) are not intended to confer any rights
or remedies upon any Person other than the Parties hereto and thereto.
Section 10.6 Severability. Any term or provision of this Agreement that is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the Parties agree that the court making such
determination shall have the power to reduce the scope, duration, area or
applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
Section 10.7 Governing Law. This Agreement and the legal relations between the
Parties hereto arising hereunder shall be governed by and construed in
accordance with the laws of Sweden without regard to its conflict of laws
principles.
Section 10.8 Extension; Waiver. At any time prior to the Closing Date, the
Parties may (a) extend the time for the performance of any of the obligations or
other acts of the other Party, (b) waive any inaccuracies in the representations
and warranties of the other Party contained in this Agreement or in any document
delivered pursuant to this Agreement, or (c) waive compliance by the other Party
with any of the agreements or conditions contained in this Agreement. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such Party. The failure of any Party to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
Section 10.9 Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the Parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
Party, except that Purchaser may assign, in its sole discretion, any or all of
its rights and interests hereunder to any direct or indirect wholly owned
subsidiary of Purchaser. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
Section 10.10. Arbitration. Any dispute, controversy or claim arising out of or
in connection with this Agreement, or the breach, termination or invalidity
thereof, shall be settled by arbitration in accordance with the Rules of the
Arbitration Institute of the Stockholm Chamber of Commerce. The place of
arbitration shall be Stockholm and the language to be used in the arbitral
proceedings shall be English.
The Parties undertake to procure that all arbitral proceedings conducted in
accordance with this Agreement shall be kept confidential. This undertaking
shall cover, inter alia, all information disclosed during the course of such
proceedings, as well as any
23
decision or award made or declared by the arbitration board. Such information
may not be disclosed to a third party without the prior written consent of the
other Party. Regardless of what is otherwise set forth in this Section 10.10,
the Parties shall not be prevented from disclosing such information as (i) they
are under an obligation to disclose pursuant to applicable law or applicable
stock exchange regulation; (ii) which was generally available to the public or
has become - through no act or failure of the disclosing Party - public
information or generally available to the public; or (iii) which is necessary in
order to safeguard the disclosing Party's interests in arbitration pursuant to
this Section 10.10.
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IN WITNESS WHEREOF, Purchaser and Seller have executed this
Agreement or caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the date first written above.
TECHTEAM GLOBAL AB
By /s/ Christoph Neut
------------------------------------------
Name: Christoph Neut
Title: Director
By /s/ Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx
Title: Director
SQM NORDIC AB
By /s/ Sven-Xxxx Xxxxxx
------------------------------------------
Name: Sven-Xxxx Xxxxxx
Title: Director, Chairman of the Board
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
25
APPENDIX 3
Representations and Warranties
Section 1.1 Share Ownership. The Seller is the recorded and beneficial owner of
the Shares. No other Person owns any securities issued by, or other obligations
of, the Company. The Shares are held by Seller free and clear of all
Encumbrances whatsoever. No action is or will be required in order to affect the
conveyance to Purchaser of each shareholder's right, title and interest in the
Shares.
Section 1.2 Legal Power; Organization; Qualification of Seller. The Seller is
competent and, subject to the approval of this Agreement by its shareholders at
a general shareholders meeting, has all requisite power and authority to execute
and deliver this Agreement and to consummate the Transactions.
Section 1.3 Binding Agreement. This Agreement has been duly executed and
delivered by Seller and, assuming due and valid authorization, execution and
delivery by Purchaser, and approval of the Agreement by the Seller's
shareholders, this Agreement constitutes a legal, valid and binding obligation
of Seller and enforceable in accordance with its terms.
Section 1.4 No Seller Conflict or Default. Neither the execution and delivery of
this Agreement nor the consummation by Seller of the Transaction will result in
a violation of, or a default under, or conflict with, or require any consent,
approval or notice under, any contract, trust, commitment, agreement,
obligation, understanding, arrangement or restriction of any kind to which
Seller is a party or by which any shareholder is bound or to which the Shares
are subject. Consummation by Seller of the Transactions will not violate, or
require any consent, approval or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to Seller.
The Seller confirms that the Company does not, as of the date of this Agreement
and the Closing Date, have any liability of whatever kind to the Seller or any
of the Sellers Affiliates, directors, officers, employees, agents, consultants,
advisors, salesmen, sales representatives, distributors or dealers and that no
such liability will arise in the future as a consequence of circumstances, to
the Knowledge of Seller, present at the date of this Agreement or the Closing
Date. The Seller further confirms, as of the date of this Agreement and the
Closing Date, that none of the assets necessary for the Company's business is
owned, leased or otherwise controlled by or encumbered on behalf of the Seller
or any of its Affiliates, directors, officers, employees, agents, consultants,
advisors, salesmen, sales representatives, distributors and dealers and that no
such person has any right to collect any compensation, kick-back, royalty or
other fee made as consideration for any services performed by the Company or any
employee of the Company or for any goods provided by the Company or otherwise is
a beneficiary under any agreement with the Company or between the Company and
any third party.
Section 1.5 Capitalization. As of the date hereof, (i) 1,000 Shares are issued
and outstanding, and no share certificates are issued, and (ii) no Shares are
owned by any Person who is not Seller. All the outstanding shares of the
Company's capital stock are duly authorized, validly issued, fully paid and
non-assessable. Except as set forth above and except for the Transactions, as of
the date hereof, (i) there are no shares of capital stock of the Company
authorized, issued or outstanding; (ii) there are
26
no existing options, warrants, calls, pre-emptive rights, subscriptions or other
rights, agreements, arrangements or commitments of any character, relating to
the issued or unissued capital stock of the Company, obligating the Company to
issue, transfer or sell or cause to be issued, transferred or sold any shares of
capital stock, or other equity, the Company or securities convertible into or
exchangeable for such shares or equity interests, or obligating the Company or
any to grant, extend or enter into any such option, warrant, call, subscription
or other right, agreement, arrangement or commitment; and (iii) there are no
outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any Shares, or other capital stock of the Company or Affiliate
of the Company.
Section 1.6 Organization; Qualification of Company. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of Sweden; (ii) has full corporate power and authority to carry on its business
as it is now being conducted and to own the properties and assets it now owns;
and (iii) is duly qualified or licensed to do business in every jurisdiction in
which ownership of property or the conduct of its business requires such
qualification. The Company has heretofore delivered to Purchaser complete and
correct copies of the Charter of the Company as presently in effect. The
Company's articles of association are set out in Schedule 1.6.
Section 1.7 Consents and Approvals; No Violations . The delivery or performance
of this Agreement by the Seller, the consummation by the Seller of any of the
Transactions or compliance by the Seller with any of the provisions hereof will
not (i) conflict with or result in any breach of any provision of the articles
of association of the Company, (ii) require any filing with, or permit,
authorization, consent or approval of, any Governmental Entity or other Person
(including consents from parties to loans, contracts, leases and other
agreements to which Seller or the Company is a party), save for any negotiation
with any labour union required by law, (iii) except as regards the guarantee
commitment of SQM Nordic AB, on the behalf of the Company, which is to be
settled in accordance with Section 2.3 (b) of this Agreement, require any
consent, approval or notice under, or result in a violation or breach of, or
constitute (with or without due notice or the passage of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any loan or
lease agreement, or (iv) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Company or any of its properties or assets.
Section 1.8 Financial Statements. True and complete copies of the Financial
Statements, together with the related auditor's reports have been provided to
the Purchaser on or prior to the Closing. The Financial Statements have been
prepared from, are in accordance with and accurately reflect, the books and
records of the Company, fully comply with applicable accounting requirements,
have been prepared in accordance with generally accepted accounting principles
in Sweden applied on a consistent basis during the periods involved (except as
may be stated in the notes thereto), are true and correct and fairly present the
financial position and the results of the operations and cash flows (and changes
in financial position, if any) of the Company as of the times and for the
periods referred to therein (subject, in the case of unaudited statements, to
normally recurring year-end audit adjustments which are not material either
individually or in the aggregate).
27
Section 1.9 Books and Records. The books of account, minute books, share
register and other capital registers or records of the Company are complete and
correct and have been maintained in accordance with sound business practices,
including to the Knowledge of the Seller the maintenance of an adequate system
of internal controls. The minute books of the Company contain accurate and
complete records of all meetings of, and corporate action taken by, Seller, the
directors or managers, as applicable, and no meeting of any of such shareholder,
the directors of manager has been held for which minutes have not been prepared
and are not contained in such minute books. True and complete copies of all
minute books and all share registers or capital registers of the Company have
heretofore been delivered to Purchaser.
Section 1.10 No Undisclosed Liabilities. Except (a) as disclosed in the
Financial Statements and (b) for liabilities and obligations incurred in the
ordinary course of business and consistent with past practice since the Balance
Sheet Date pursuant to the terms of this Agreement, the Company has no liability
or obligation of any nature, whether or not accrued, contingent or otherwise,
that has, or would be reasonably likely to have, a material adverse effect on
the Company, taken as a whole. The reserves reflected in the Financial
Statements are adequate, appropriate and reasonable and have been calculated in
a consistent manner.
Section 1.11 Accounts Receivable. All accounts receivable of the Company,
whether reflected in the Balance Sheet or otherwise, represent sales actually
made in the ordinary course of business and are current and collectible net of
any reserves shown on the Balance Sheet. Subject to such reserve, to the
Knowledge of the Seller, each such account receivable either has been collected
in full or will be collected in full.
Section 1.12 Disputed Accounts Payable. There are no unpaid invoices or bills
representing amounts alleged to be owed by the Company, or other alleged
obligations of the Company, which the Company has disputed or determined to
dispute or refuse to pay, which have not been recorded on the books of the
Company.
Section 1.13 Prepayment of Company Debt. No Indebtedness of the Company contains
any restriction upon (i) the prepayment of any Indebtedness of the Company, (ii)
the incurrence of Indebtedness by the Company, or (iii) the ability of the
Company to grant any lien on the properties or assets of the Company. There is
no principal and unpaid interest outstanding under any instrument evidencing
Indebtedness of the Company, if any, that will accelerate or become due or
result in a right on the part of the holder of such Indebtedness (with or
without due notice or lapse of time) to require prepayment, redemption or
repurchase as a result of the execution of this Agreement or the consummation of
any of the Transactions.
Section 1.14 Absence of Certain Changes. Since the Balance Sheet Date, the
Company has conducted its respective business only in the ordinary and usual
course and consistent with past practice, and the Company has not:
28
a. suffered any significant adverse change in its working capital,
financial condition, results of operation, assets, liabilities
(absolute, accrued, contingent or otherwise), reserves, business,
operations or prospects;
b. incurred any liability or obligation (absolute, accrued, contingent
or otherwise) except immaterial items incurred in the ordinary
course of business and consistent with past practice, none of which
exceeds SEK 100,000 (counting obligations or liabilities arising
from one transaction or a series of similar transactions, and all
periodic installments or payments under any lease or other agreement
providing for periodic installments or payments, as a single
obligation or liability), or experienced any change in any
assumptions underlying or methods of calculating, any bad debt,
contingency or other reserves;
c. paid, discharged or satisfied any claim, liability or obligation
(whether absolute, accrued, contingent or otherwise) other than the
payment, discharge or satisfaction in the ordinary course of
business and consistent with past practice of liabilities and
obligations reflected or reserved against in the Balance Sheet or
incurred in the ordinary course of business and consistent with past
practice since the Balance Sheet Date;
d. permitted or allowed any of its property or assets (real, personal
or mixed, tangible or intangible) to be subjected to any mortgage,
pledge, lien, security interest, encumbrance, restriction or charge
of any kind, except for liens for current taxes not yet due;
e. written down the value of any inventory (including write-downs by
reason of shrinkage or xxxx-down) or written off as uncollectible
any notes or accounts receivable;
f. cancelled any debts or waived any claims or rights of material
value;
g. sold, transferred, or otherwise disposed of any of its properties or
assets (real, personal or mixed, tangible or intangible), except in
the ordinary course of business or consistent with past practice;
h. disposed of or permitted to lapse any rights to the use of any
Intellectual Property, or disposed of or disclosed to any Person
other than representatives of Purchaser any trade secret, formula,
process, know-how or other Intellectual Property not theretofore a
matter of public knowledge;
i. granted any general increase in the compensation of directors,
managers, officers or employees (including any such increase
pursuant to any bonus, pension, profit-sharing or other plan or
commitment) or any increase in the compensation payable or to become
payable to any officer or employee,
j. made any single capital expenditure or commitment in excess of SEK
75,000 for additions to property, plant, equipment or intangible
capital assets or made aggregate capital expenditures and
commitments in excess of SEK 75,000 for additions to property,
plant, equipment or intangible capital assets;
29
k. declared, paid or set aside for payment any dividend or other
distribution in respect of its capital stock or redeemed, purchased
or otherwise acquired, directly or indirectly, any shares of capital
stock or other securities of the Company ;
l. made any change in any method of accounting or accounting practice;
m. paid, loaned or advanced any amount to, or sold, transferred or
leased any properties or assets (real, personal or mixed, tangible
or intangible) to, or entered into any agreement or arrangement
with, any of its officers or directors or any Affiliate of any of
its officers or directors, except for directors' fees and
compensation to officers at rates not exceeding the rates of such
fees and compensation paid during the year ended 2005; or
n. agreed, whether in writing or otherwise, to take any action
described in this section.
Section 1.15 Title to Properties; Encumbrances. Except for property having an
aggregate book value not in excess of SEK 100,000 sold since the Balance Sheet
Date in the ordinary course of business and consistent with past practice, each
of the Company has good, valid and marketable title to all the properties and
assets that it purports to own (tangible and intangible) free and clear of all
Encumbrances, including all the properties and assets reflected in the Balance
Sheet and all such properties and assets purchased by the Company since the
Balance Sheet Date, which are listed in Schedule 1.15. All properties and assets
reflected in the Balance Sheet have a fair market or realizable value at least
equal to the value thereof as reflected therein. The rights, properties and
other assets presently owned, leased or licensed by the Company and described
elsewhere in this Agreement include all such rights, properties and other assets
necessary to permit the Company to conduct their respective businesses in all
material respects in the same manner as such businesses have been conducted
prior to the date hereof.
Section 1.16 Real Property. The Company has no real property.
Section 1.17 Leases. A true and complete copy of each Lease has heretofore been
delivered to Purchaser. Each Lease is valid, binding and enforceable in
accordance with its terms and is in full force and effect. The leasehold estate
created by each Lease is free and clear of all Encumbrances. There are no
existing defaults by the Company under any of the Leases. No event has occurred
that (whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a default under any Lease.
Seller has not received notice, or has any other reason to believe, that any
lessor under any Lease will not consent (where such consent is necessary) to the
consummation of the Transactions without requiring any modification of the
rights or obligations of the lessee thereunder.
Section 1.18 Plant and Equipment. The offices, structures and equipment,
including but not limited to computer equipment, owned or used by the Company
have, to the Knowledge of Seller, no known defects and are in good operating
condition and repair and are adequate for the uses to which they are being put.
None of such offices, structures or equipment are in need of maintenance or
repairs except for ordinary, routine maintenance and repairs which are not
material in nature or cost. The
30
Company has not received notification that it is in violation of any applicable
building, zoning, health or other law, ordinance or regulation in respect of
their operations.
Section 1.19 Environmental Matters. The Company is, in all material aspects, in
compliance with all Environmental Laws.
Section 1.20 Contracts and Commitments.
a. The Company has no agreements, contracts, commitments or
restrictions which are material to its business, operations or
prospects or which require the making of any payment not set forth
in the relevant agreement.
b. No purchase contracts or purchase commitments of the Company
continue for a period of more than 12 months or are in excess of the
normal, ordinary and usual requirements of business or at any
excessive price.
c. To the actual knowledge of Seller and the Managing Director of the
Company, there are no outstanding bids or proposals of the Company
which, if accepted by the customer, will result in any loss to the
Company upon completion or performance thereof after allowance for
direct expenses, nor are there any outstanding contracts, bids or
sales or service proposals quoting prices which will not result in a
normal profit.
d. The Company has no outstanding contracts with Seller or the Seller's
Affiliates, directors, officers, employees, agents, consultants,
advisors, salesmen, sales representatives, distributors or dealers
that are not cancelable by it on notice of not longer than 30 days
and without liability, penalty or premium or any agreement or
arrangement providing for the payment of any bonus or commission
based on sales or earnings,
e. The Company has no employment agreement, or any other agreement that
contains any severance or termination pay liabilities or
obligations, except as set forth in Schedule 1.20(e).
f. The Company is not in default under or in violation of, nor is there
any valid basis for any claim of default under or violation of, any
contract, commitment or restriction to which it is a party or by
which it is bound.
g. The Company has no outstanding agreement to acquire any debt
obligations of others.
h. The Company has no outstanding loan to any Person.
i. The Company has no power of attorney outstanding or any obligations
or liabilities (whether absolute, accrued, contingent or otherwise),
as guarantor, surety, co-signer, endorser, co-maker, indemnitor or
otherwise in respect of the obligation of any Person, corporation,
partnership, joint venture, association, organization or other
entity.
31
j. The Company has no commitment or obligation to continue to utilize
the services of, or otherwise to do business with, any licensor,
vendor, supplier or licensee of the Company, except as provided for
in the Data Room.
k. Except (i) as set forth in the Financial Statements or (ii) for the
Transactions, as of the date hereof, the Company has no liabilities
or obligations of any nature (whether accrued, absolute, contingent
or otherwise) which, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the
Company.
Section 1.21 Customers and suppliers. Since the Balance Sheet Date there has not
been any Material Adverse Change in the business relationship of the Company
with any customer or any supplier. Since the Balance Sheet Date, no material
customer, supplier, licensor, or licensee of the Company has cancelled or
otherwise modified its relationship with the Company and, (a) to the Knowledge
of Seller no such Person has any intention to do so and (b) to the actual
knowledge of the Seller, the consummation of the Transactions will not adversely
affect any of such relationships.
Section 1.22 Insurance. The insurance policies listed in Schedule 1.22 will
remain valid, in full force and effect, at least until the Closing Date and
comprise an insurance coverage of the type and in amounts customarily carried by
Persons conducting businesses or owning assets similar to those of the Company.
Section 1.23 Casualties. Since the Balance Sheet Date the Company has not been
affected in any way as a result of flood, fire, explosion or other casualty
(whether or not material and whether or not covered by insurance). The Company
is not aware of any circumstance which is likely to cause it to suffer any
adverse change in its business, operations or prospects.
Section 1.24 Litigation. There is no action, suit, inquiry, proceeding or
investigation by or before any court or governmental or other regulatory or
administrative agency or commission pending or threatened against or involving
the Company or which questions or challenges the validity of any Company
Intellectual Property right of use of any Intellectual Property by the Company
or any action taken or to be taken by the Company pursuant to this Agreement or
in connection with the Transaction; and there is no valid basis for any such
action, proceeding or investigation. The Company is not subject to any judgment,
order or decree which may have an adverse effect on its business practices or on
its ability to acquire any property or conduct its business in any area.
Section 1.25 Compliance with Laws; Privacy.
a. The Company has, to the Knowledge of Seller, complied in a timely
manner and in all material respects with all laws, rules and
regulations, ordinances, judgments, decrees, orders, writs and
injunctions of any national or local Governmental Entity.
b. The Company has, to the Knowledge of Seller, in all material
aspects, complied with applicable laws relating to privacy, data
protection and the
32
collection and use of personal information and user information
gathered or accessed in the course of the operations of the Company.
With respect to all personal and user information described in
subsection (b) above, the Company has at all times taken all steps
reasonably necessary (including, without limitation, implementing
and monitoring compliance with adequate measures with respect to
technical and physical security) to ensure that such information is
protected against loss and against unauthorized access, use,
modification, disclosure or other misuse. There has been no
unauthorized access to or other misuse of that information. The
Company maintains systems and procedures reasonably intended to
respond to complaints received alleging violation of third party
content rights.
Section 1.26 Employee Benefit Plans.
a. The Company has no commitment or formal plan, whether legally
binding or not, to create any Employee Benefit Plans or modify or
change any existing Employee Benefit Plan that would affect any
employee or former employee of the Company.
b. The Company is, in all material aspects, in compliance with all its
undertakings under any Employee Benefit Plan.
c. The consummation of the Transactions will not, either alone or in
combination with another event, (i) entitle any current or former
employee, director, manager or officer of the Company to severance
pay, unemployment compensation or any other payment or (ii)
accelerate the time of payment or vesting, or increase the amount of
compensation due any such employee, director or officer.
d. Except for routine claims for benefits, there are no pending, or to
the Knowledge of Seller, threatened claims by or on behalf of any
Employee Benefit Plan, by any employee or beneficiary covered under
any such Plan, or otherwise involving any such Plan.
Section 1.27 Tax Matters.
a. The Company has filed all Tax Returns that are required to be filed
and have paid or caused to be paid in full or made provision in
accordance with Swedish law (or there has been paid or provision has
been made on their behalf) for the payment of all Taxes for all
periods or portions thereof ending through the date hereof. All such
Tax Returns are correct and complete and accurately reflect all
liability for Taxes for the periods covered thereby.
b. There are no liens for Taxes upon any property or assets of the
Company thereof.
c. The Company has made no change in accounting methods, received a
ruling from any taxing authority or signed an agreement with respect
thereto or signed any closing agreement with respect to any Tax
year.
33
d. The Company has complied in all respects with all applicable laws,
rules and regulations relating to the payment and withholding of
Taxes, and have, within the time and the manner prescribed by law,
withheld and paid over to the proper taxing authorities all amounts
required to be so withheld and paid over under applicable laws.
e. No Governmental Entity audits, examinations, investigations or other
administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Tax Returns of the Company.
There are no pending Tax audits or proceedings concerning the
Company.
f. All Tax deficiencies that have been claimed, proposed or asserted
against the Company have been fully paid or finally settled, and no
issue has been raised in any examination by any taxing authority
that, by application of similar principles, could reasonably be
expected to result in the proposal or assertion of a Tax deficiency
for another year not so examined.
g. There are no outstanding requests, agreements, consents or waivers
to extend the statutory period of limitations applicable to the
assessment of any Taxes or deficiencies against the Company.
h. The Company is not a party to, is bound by or has any obligation
under any Tax indemnification agreement or similar contract or
arrangement, and the Company has no potential liability or
obligation to any Person as a result of, or pursuant to, any such
agreement, contract or arrangement.
i. There are no unresolved questions or claims concerning Tax liability
of the Company.
j. Other than any Tax Returns that have not yet been required to be
filed, the Company has made available to Purchaser true, correct and
complete copies of the Tax Return for any applicable jurisdiction.
k. The Company has delivered or made available to Purchaser complete
and accurate copies of each of (i) all audit reports, letter
rulings, technical advice memoranda and similar documents issued by
any Governmental Entity relating to the any country with respect to
any Taxes due from or with respect to the Company and (ii) all
closing agreements entered into by the Company with any taxing
authority in each case existing on the date hereof.
l. The Company has no liability with respect to income, franchise or
similar Taxes relating to the operation of the Company prior to the
Balance Sheet Date in excess of the amounts that are accrued with
respect thereto and are reflected in the Financial Statements, and
since the date of the Financial Statements, Company has not incurred
any liability for Taxes, except with respect to operations in the
ordinary course of business after the Balance Sheet Date. All Taxes
owed and due by the Company relating to operations on or prior to
the Balance Sheet Date (whether or not shown on any Tax Return) have
been paid on a timely basis.
34
m. The Company has not received written notice of any claim made by an
authority in a jurisdiction where the Company files Tax Returns that
the Company is or may be subject to taxation by that jurisdiction.
n. No audits, examinations or other administrative proceedings of any
Governmental Entity have been commenced or, to the Knowledge of
Seller, are pending with regard to any Taxes or Tax Returns of the
Company. No written notification has been received by the Company
that such an audit, examination or other proceeding is pending or
threatened with respect to any Taxes due from or with respect to or
attributable to the Company or any Tax Return filed by or with
respect to the Company. To the Knowledge of Seller, there is no
dispute or claim concerning any Tax liability of the Company, either
claimed or raised by any taxing authority in writing.
Section 1.28 Intellectual Property.
a. Schedule 1.28 sets forth a true and complete list of all patents and
patent applications, trademark registrations and applications,
service xxxx registrations and applications, Computer Software,
Copyright registrations and applications, material unregistered
trademarks, service marks, and Copyrights, and Internet domain names
used or held for use in connection with the business of the Company,
together with all licenses related to the foregoing, whether the
Company is the licensee or licensor thereunder.
b. The Company is the sole and exclusive owner or valid licensee of all
Company Intellectual Property, free and clear of all Encumbrances.
c. All registrations and applications for Intellectual Property that
are owned by the Company and that are used in and are material to
the conduct of the businesses of the Company as currently conducted
(i) are valid, subsisting, in proper form and enforceable, and have
been duly maintained, including the submission of all necessary
filings and fees in accordance with the legal and administrative
requirements of the appropriate jurisdictions and (ii) have not
lapsed, expired or been abandoned, and no registration or
application therefor is the subject of any opposition, interference,
cancellation proceeding or other legal or governmental proceeding
before any Governmental Entity in any jurisdiction.
d. The Company owns or has the valid right to use all of the
Intellectual Property used by it or held for use by it in connection
with its business. There are, to the Knowledge of Seller, no
conflicts with or infringements of any Company Intellectual Property
by any third party. The conduct of the businesses of the Company as
currently conducted does not conflict with or infringe in any way on
any proprietary right of any third party. There is no claim, suit,
action or proceeding pending or threatened against the Company (i)
alleging any such conflict or infringement with any third party's
proprietary rights or (ii) challenging the ownership, use, validity
or enforceability of the Intellectual Property owned or used by the
Company.
e. To the Knowledge of the Seller, Computer Software used by the
Company in the conduct of its businesse was either (i) developed by
employees of the
35
Company (ii) developed on behalf of the Company by a third party,
and all ownership rights therein have been assigned or otherwise
transferred to or vested in the Company pursuant to written
agreements or (iii) licensed or acquired from a third party pursuant
to a written license, assignment, or other contract that is in full
force and effect and of which the Company is not in breach.
f. The Company has not entered into any consent, indemnification,
forbearance to xxx, settlement agreement or cross-licensing
arrangement with any Person relating to the Company Intellectual
Property or, to the Knowledge of Seller, any Intellectual Property
licensed by the Company or the Intellectual Property of any third
party, except as contained in any license agreements listed in the
Schedule 1.28(f).
g. The Company is not as a result of the execution and delivery of this
Agreement or the performance of its obligations under this
Agreement, in breach of any license, sublicense or other agreement
relating to the Company Intellectual Property.
Section 1.29 Computer System.
a. The Computer System is not wholly or partly dependent on any
facilities which are not under the exclusive ownership or control of
or licensed or leased to the Company except normal use of external
services such as services provided by Internet Service Providers.
b. To the Knowledge of Seller, the Computer System has been and is
being properly and regularly maintained and replaced and has the
benefit of appropriate maintenance and support agreements; and has
the capacity and is of a suitable technical specification necessary
to fulfill the present and foreseeable requirements of the business
of the Company for operating the business of the Company as
currently conducted.
c. The Computer System comprises all computer hardware, firmware,
software (including source code and object code) manuals, supporting
materials and accessories which are necessary to enable the Company
to carry on business of the Company.
d. The rights of the Company to use the Computer System will not be
affected by the execution of this Agreement or the completion of the
Transactions contemplated herein.
Section 1.30 Labor Matters
a. There is no labor strike, dispute, corporate campaign, slowdown,
stoppage or lockout actually pending, or threatened against or
affecting the Company and during the past three years there has not
been any such action.
b. The Company is a party to collective bargaining agreement(s) as set
forth in Schedule 1.30.
36
c. The Company has not experienced any work stoppage since January 1,
2001.
d. The Company is in compliance, in all material respects, with all
applicable laws respecting employment and employment practices,
terms and conditions of employment, wages, hours of work and
occupational safety and health, and is not engaged in any unfair
labor practices, as defined in any applicable laws.
e. There is no unfair labor practice charge or complaint against the
Company pending or, to the Knowledge of Seller threatened.
f. There is no presently pending grievance arising out of any
collective bargaining agreement or other grievance procedure.
g. The Company has not received notice of the intent of Governmental
Entity responsible for the enforcement of labor or employment laws
to conduct an investigation with respect to or relating to the
Company and no such investigation is in progress.
h. There are no complaints, lawsuits or other proceedings pending or,
to the Knowledge of Seller, threatened in any forum by or on behalf
of any present or former employee of the Company, any applicant for
employment alleging breach of any express or implied contract of
employment, any laws governing employment or the termination thereof
or other discriminatory, wrongful or tortuous conduct in connection
with the employment relationship.
Section 1.31 Personnel. Schedule 1.31 sets forth a true and complete list of (i)
the names and current salaries of all directors and elected and appointed
officers of the Company; and (ii) the wage rates for non-salaried and
non-executive salaried employees of the Company by classification as of the date
of this Agreement. The Company is not in default with respect to any of its
obligations referred to in the preceding sentence. To the Knowledge of Seller,
no officer, Key Employee or group of employees has any plans to terminate
employment with the Company as a result of the Transactions or otherwise.
Section 1.32 Potential Conflict of Interest. Except as set out in Schedule 1.32,
neither Seller nor any Key Employee or director of the Company owns or holds,
directly or indirectly, any interest in, or is an officer, director, employee or
consultant of any Person that is, a competitor, lessor, lessee, customer or
supplier of the Company or which conducts a business similar to any business
conducted by the Company. Neither Seller nor any officer or director of the
Company (a) owns or holds, directly or indirectly, in whole or in part, any
Company Intellectual Property, (b) has any claim, charge, action or cause of
action against the Company, except for claims for reasonable unreimbursed travel
or entertainment expenses, accrued vacation pay or accrued benefits under any
employee benefit plan existing on the date hereof, (c) has made, on behalf of
the Company, any payment or commitment to pay any commission, fee or other
amount to, or to purchase or obtain or otherwise contract to purchase or obtain
any goods or services from, any other Person of which any shareholder, officer
or director of the Company is a partner or shareholder or (d) owes any money to
the Company, or (e) has any material interest in any property, real or personal,
tangible or intangible, used in or pertaining to the business of the Company.
37
Section 1.33 Propriety of Past Payments. (a) No unrecorded fund or asset of the
Company has been established for any purpose, (b) no accumulation or use of
corporate funds of the Company has been made without being properly accounted
for in the books and records of the Company, (c) no payment has been made by or
on behalf of the Company with the understanding that any part of such payment is
to be used for any purpose other than that described in the documents supporting
such payment, and (d) none of the Company, any director, officer, employee or
agent of the Company or any other Person associated with or acting for or on
behalf of the Company has, directly or indirectly, made any illegal
contribution, gift, bribe, rebate, payoff, influence payment, kickback or other
payment to any Person, private or public, regardless of form, whether in money,
property or services, (i) to obtain favorable treatment for Seller, the Company,
or any Affiliate of the Company in securing business, (ii) to pay for favorable
treatment for business secured for Seller, the Company, or any Affiliate of the
Company, (iii) to obtain special concessions, or for special concessions already
obtained, for or in respect of Seller, the Company, or any Affiliate of the
Company, or (iv) otherwise for the benefit of Seller, the Company, or any
Affiliate of the Company in violation of any law or other administrative order,
constitution, ordinance, regulation, statute or other such norm. Neither the
Company nor any current director, officer, agent, employee or other Person
acting on behalf of the Company, has accepted or received any unlawful
contribution, payment, gift, kickback, expenditure or other item of value.
Section 1.34 Liability. There are not presently pending or threatened, and,
there is no basis for, any civil, criminal or administrative actions, suits,
demands, claims, hearings, notices of violation, investigations, proceedings or
demand letters relating to any Defect in design, manufacture, materials or
workmanship, including any failure to warn or alleged breach of express or
implied warranty or representation, relating to any product developed, licensed,
distributed or sold by or service provided by or on behalf of the Company. The
Company has not extended to any of its customers any written, non-uniform
product warranties, indemnifications or guarantees.
Section 1.35 Bank Accounts. Schedule 1.35 sets forth the names and locations of
all banks, trust companies, savings and loan associations and other financial
institutions at which the Company maintains safe deposit boxes, checking
accounts or other accounts of any nature, and the names of all Persons
authorized to draw thereon, make withdrawals therefrom or have access thereto.
Section 1.36 Brokers. Other than to Prevestor, neither the Seller nor the
Company has incurred any obligation or liability, contingent or otherwise, for
broker's or finder's fee or any other commission or similar fee in connection
with any of the Transactions.
38
LIST OF OMITTED SCHEDULES
Schedule 1.15 After Balance Sheet Date Purchase
Schedule 1.20(e) Employment Agreements w/Severance
Schedule 1.22 Insurance Policies
Schedule 1.28 Intellectual Property
Schedule 1.28(f) License Agreements
Schedule 1.30 Collective Bargaining Contracts
Schedule 1.31 List of Employees
Schedule 1.32 Potential Conflict of Interest
Schedule 1.35 Bank Accounts
Schedule 8.4 Data Room Index
39
EXHIBIT 1.4
ESCROW AGREEMENT
BETWEEN
TECHTEAM GLOBAL AB
AS PURCHASER
SQM NORDIC AB
AS SELLER
AND
40
ESCROW AGREEMENT
This Escrow Agreement is made on 9 February 2007 by and between
1. TechTeam Global AB, a company duly incorporated and organized under the
laws of Sweden, address C/O TechTeam Global NV/SA, Xxxxxxxxxxxxxxxxxxxx
00, 0000 Xxxxxxxx, Xxxxxxx (the "PURCHASER");
2. SQM Nordic AB, a company duly incorporated and organized under the laws of
Sweden, Box 23004, XX-000 00 Xxxxxxxxx, Xxxxxx (the "SELLER")
3. (the "BANK")
WHEREAS, the Purchaser and the Seller have on 19 January 2007 entered into a
Share Purchase Agreement (hereinafter referred to as "AGREEMENT") pursuant to
which the Purchaser have agreed to purchase and the Seller have agreed to sell
all shares in SQM Sverige AB.
WHEREAS, pursuant to the Agreement it has been agreed that Purchaser shall pay
an amount of SEK 5,730,000 into a separate interest bearing bank account as
security for obligations of the Seller under the Agreement (the "Indemnity
Escrow");
WHEREAS, the Purchaser and the Seller have appointed the Bank which has agreed
to act as escrow agent;
WHEREAS this Escrow Agreement sets forth the terms on which the Bank will hold
the monies to be held in escrow;
NOW, THEREFORE, the parties agree to the following terms and conditions.
1. Interpretation
For the Purpose of this Escrow Agreement it is agreed that
"Account" shall have the meaning set out in Section 2 below;
"Agreement" shall have the meaning set forth in the preamble;
"Bank" shall have the meaning set forth in the preamble;
"Closing Date" shall mean 9 Febrary 2007
"Indemnity Escrow" shall mean the amount of SEK 5 730 000, to be paid by
the Purchaser to the Account;
41
"Purchaser" shall have the meaning set forth in the preamble;
"Seller" shall have the meaning set forth in the preamble;
2. Establishment of the Account
The Bank confirms that it has established an interest bearing SEK bank
account in the name of the Seller, which account is the "Account".
The details of the Account are as follows.
Account No. 1379 01 13808
Interest rates and general terms and conditions for the Account are set
out in Schedule 2 a and 2 b.
3. Payment of the Indemnity Escrow
The Purchaser shall on Closing pay the Indemnity Escrow to the Account.
The Bank shall accept delivery and shall acknowledge receipt of payment of
the Indemnity Escrow to the Account.
4. Release from the Account
4.1 The Bank shall release the Indemnity Escrow within ten (10) business days
following receipt by the Bank of an instruction to release the Indemnity
Escrow from the Account, only in accordance with the following:
a) in accordance with written notice, in the form set out in Schedule
4.1 a, given jointly by the Purchaser and the Seller, or
b) in accordance with a final and binding court order or a final and
binding arbitration award, awarding payment or releasing funds, as
the case may be, to the Purchaser and/or to the Seller, or
For the purposes of this Section 4.1 b), the Bank will only be
obliged to investigate that the time for appeal in relation to a
court order or arbitration award has expired and that the Bank has
not been notified of any appeal in accordance with Section 6 below.
c) in case the Purchaser have not informed the Bank that a dispute has
arisen regarding the Agreement at the latest on the first-year
anniversary of the Closing Date, the Indemnity Escrow standing to
the Account shall be paid to the Seller. A notice, in the form set
out in Schedule 4.1 c, that such a dispute has arisen shall be sent
in writing to the Bank to the address set out in section 6 below. If
the
42
Bank has received such notice, what is stated in section 4.1 (a)-(b)
above shall apply regarding release of the Indemnity Escrow.
4.2 An instruction to pay the Indemnity Escrow according to Section 4.1 shall
specify to whom the release(s) shall be made, the bank account(s) of such
recipient(s), the date of such release(s), and the amount(s) of such
release(s).
4.3 The Purchaser and the Seller also acknowledge that the accrued interest
can only be capitalized when the account is terminated or at the end of
each year.
4.4 The Bank's duties and responsibilities shall be limited to those expressly
set forth in this Escrow Agreement and the Bank shall neither be subject
to nor obliged to recognize any other agreement between, or direction or
instruction from any or all of the parties hereto even though reference
thereto may be made herein. For the avoidance of doubt, the Bank shall
have no obligation to release the Indemnity Escrow (or part thereof) in
violation of any court orders or decisions.
5. Limitations of the Bank's Liability
5.1 The Bank shall not be liable for any loss or damage resulting from a legal
enactment, Swedish or foreign, the intervention of a public authority,
Swedish or foreign, an act of war, a strike, a blockade, a boycott, a
lockout or any other similar circumstance. The reservation in respect of
strikes, blockades, boycotts and lockouts shall apply even if the Bank
itself is subjected to such measures or takes such measures itself.
5.2 The Bank shall not be liable for any loss or damage that may occur as a
result of any act or circumstance not referred to in Section 5.1 except
arising out of the Bank's fraud, wilful default or negligence. Under no
circumstances shall the Bank be responsible for indirect loss or damage.
5.3 Where a circumstance referred to in Section 5.1 shall prevent the Bank
from making a payment in accordance with the terms of this Escrow
Agreement, such payment may be postponed until such circumstance no longer
exists. In the event of a postponement of payment, the Bank shall continue
to apply interest, according to Schedule 2 a, on the Escrow Amount up to
and including the date of payment of the postponed payment.
5.4 The Purchaser and the Seller hereby declare that they have taken into
consideration all Swedish legal aspects regarding the deposition of the
Escrow Amount in the Account. The fact that the Bank has signed this
agreement and received the Escrow Amount for deposition does not
constitute any responsibility for the Bank regarding the validity of the
various stipulations of the agreement. The Purchaser and the Seller agree
43
to indemnify, jointly and severally, the Bank against all reasonable
litigation costs incurred by the Bank in connection with any dispute
regarding this Escrow Agreement, with the exception of disputes resulting
from any negligence, fraud or abuse by the Bank.
5.5 Notwithstanding what has been agreed between the Parties regarding the
payment of Indemnity Escrow or non-payment of such Indemnity Escrow, the
Bank will make payment in accordance with stipulations in Swedish law or
in accordance with a decree given by a Swedish authority. Such a payment
of Indemnity Escrow will not be deemed to violate this Escrow Agreement
and the Bank shall consequently not be liable to pay any compensation for
such payment.
5.6 The Bank shall not be liable, in the absence of fraud, abuse or negligence
by the Bank, for its failure to verify the authenticity of any written
instructions or other document delivered to it pursuant to this Escrow
Agreement, or its failure to verify the genuineness of any signature of
power of attorney of any person or issue such instructions or execute such
documents.
6. Notices
Any written notice, consent, instruction or request to be given or made
pursuant to or for the purposes of this Escrow Agreement shall be deemed
sufficiently given, apart from instructions to the Bank as set out below,
sent by mail to the following addresses:
The Purchaser:
To addresses set out in preamble of this Escrow Agreement.
The Seller:
To addresses set out in preamble of this Escrow Agreement.
The Bank:
or to such other address as the Parties shall specify in writing to the
other Parties. As regards notices to the Bank, the Bank shall confirm
receipt of such notice to the sender without delay. If such receipt
confirmation has not been obtained by the sender within three (3) Business
Days from the day it was sent, a notice shall not be deemed duly delivered
hereunder unless the sender has provided the Bank with a new notice. All
communication under this Escrow Agreement shall be in Swedish.
7. Termination of the Account
44
An instruction in accordance with section 4 above that all Indemnity
Escrow shall be released shall also have the meaning that the Account, as
well as the safe custody account, shall be terminated.
8. Costs
The Bank shall be entitled to fees according to Schedule 2 a hereto.
The Banks fees shall be shared equally (1/2 each) between the Purchaser
and the Seller.
9. Governing Law and disputes
This Escrow Agreement shall be governed by and construed in accordance
with the laws of Sweden.
Any dispute, controversy or claim arising out of or in connection with
this contract, or the breach, termination or invalidity thereof, shall be
settled by arbitration in accordance with the Rules of the Arbitration
Institute of the Stockholm Chamber of Commerce. The place of arbitration
shall be Stockholm, Sweden and the language to be used in the arbitral
proceedings shall be Swedish.
The parties to the Escrow Agreement undertake to procure that all arbitral
proceedings conducted in accordance with this Escrow Agreement shall be
kept confidential. This undertaking shall cover, inter alia, all
information disclosed during the course of such proceedings, as well as
any decision or award made or declared by the arbitration board. Such
information may not be disclosed to a third party without the prior
written consent of the other Party. Notwithstanding the aforesaid, the
parties shall not be prevented from disclosing such information as (i)
they are under an obligation to disclose pursuant to applicable law or
applicable stock exchange regulation; (ii) which was generally available
to the public or has become - through no act or failure of the disclosing
party - public information or generally available to the public; or (iii)
which is necessary in order to safeguard the disclosing Party's interests
in arbitration.
45
This Escrow Agreement has been executed in three (3) original copies of which
each party has taken one copy.
The Parties hereto have executed this Escrow Agreement as of the day and year
first above written.
TechTeam Global AB SQM Nordic AB
/s/ Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx /s/ Sven-Xxxx Xxxxxx
----------------------------------- ----------------------------
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
46
EXHIBIT 6.3
REDUNDANCY GUIDELINES
In order to complete (1) in Section 6.3, Mutual Undertaking, of the Share
Purchase Agreement dated January 19, 2007 ("SPA"), the Parties agree as follows:
1. In the event a redundancy process is required due to HP terminating
the Company's subcontract with Ericsson ("HP/Ericsson Contract)
during the Earn-out Period, the Parties agree that the Company will
seek to minimize the financial impact of redundancies.
2. The Company will attempt to have the new provider of services to
Ericsson accept the employment of the SQM employees providing
services on the HP/Ericsson Contract (such employees being
"HP/Ericsson Contractors").
3. The Company shall negotiate with the local labor union regarding any
redundancies as required by law and applicable collective bargains.
4. The Company may negotiate with the local labor union to reach an
agreement to permit a redundancy process not in accordance with the
"last in, first out" seniority rule ("LIFO Rule").
5. The Company will attempt to assign HP/Ericsson Contractors to
another vacant position within the Company or the Purchaser.
6. The amount of indemnity owed by Seller to Purchaser under Section
8.9 shall include costs for salary and other benefits during the
notice period, severance payments in accordance with the provisions
of the employment contracts now in force between the employees and
the Company, paid to employees made redundant as a result of the
termination of the HP/Ericsson Contract. The amount of indemnity
owed by Seller to Purchaser under Section 8.9 of the SPA will also
include social insurance contributions/payroll taxes on all the
mentioned amounts as well as legal costs if an employee should claim
damages or claim that the termination of employment is invalid.
7. Further, the amount of indemnity owed by Seller to Purchaser under
Section 8.9 of the SPA will also include all indirect and
consequential damages (such as, but not limited to, increased costs
for salaries and project management and any
47
fines/damages to customers) incurred by the Company as an effect of
any employees engaged in projects, other than the HP/Ericsson
Contract, having to be replaced due to the LIFO Rule. Seller's total
liability under this paragraph 7 will in all circumstances be
limited to SEK two hundred and fifty thousand (250.000).
Any capitalized term not defined herein shall have the meaning set forth in the
SPA.
TECHTEAM GLOBAL AB
By /s/ Christoph Neut
------------------------------------------
Name: Christoph Neut
Title: Director
By /s/ Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx
Title: Director
SQM NORDIC AB
By /s/ Sven-Xxxx Xxxxxx
------------------------------------------
Name: Sven-Xxxx Xxxxxx
Title: Director, Chairman of the Board
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
48
EXHIBIT 6.3
REVENUE GUIDELINES
In order to complete (2) in Section 6.3, Mutual Undertaking, of the Share
Purchase Agreement dated January 19, 2007 ("SPA"), the Parties agree as follows:
8. "Revenue" means revenue earned by SQM, as determined under
accounting principles generally accepted in Sweden.
9. "Revenue Target" means of the target of SEK 93,500,000 of Revenue
required to be earned by SQM during the 2007 financial year in order
to receive the Additional Purchase Price.
10. Any Revenue generated from a sales lead developed by a SQM sales
representatives, regardless of whether the work is performed by
Purchaser or Purchaser's Affiliates (collectively referred as
"TechTeam") or SQM, will count toward the Revenue Target;
11. Any Revenue from an existing customer of SQM where the work is
performed by TechTeam will count toward the Revenue Target;
12. Any Revenue from contracts sold by SQM from a sales lead developed
by a TechTeam sales representative will count toward the Revenue
Target;
13. Any Revenue generated by the use of the SQM Guide by TechTeam will
count toward the Revenue Target as long as SQM's employees provide
the services;
14. SQM will not be credited revenue toward the Target Revenue for the
use of SQM facilities by TechTeam in performing work for an existing
TechTeam customer from SQM's facilities
15. If current SQM employees perform work on behalf of TechTeam, SQM
will be credited revenue as if SQM earned a gross margin percentage
of 25% toward the Target Revenue. Gross margin percentage means
revenue minus directs costs and indirect costs allocated to service
delivery divided by revenue;
16. Decision on what new business opportunities to pursue will be made
by SQM's Managing Director in consultation with TechTeam's Senior
Vice President of EMEA;
17. SQM is not required to increase the number of sales personnel
selling its services from the number employed in 2006. Any
49
decision to increase the number of sales personnel will be made by
the Managing Director of SQM, in consultation with TechTeam's Senior
Vice President of EMEA.
18. SQM will sell business with a gross margin percentage consistent
with the gross margin percentages earned by SQM during 2006. SQM
can, in its own discretion, decline to provide services earning less
than 25% gross margin;
19. SQM shall provide monthly reports to the Seller's Representative
that provides (a) the Revenue earned in the prior month and (b) a
new business pipeline;
20. Seller's Representative will not be involved in the day-to-day
management of SQM. Seller's Representative will not raise concerns
regarding the management of SQM with SQM's Managing Director. In the
event that the Seller's Representative has concerns about the effect
of operating activities of SQM on SQM's ability to generate revenue,
he will provide written notice to the SQM Board of Directors as soon
as practical documenting his concerns and the impact on SQM's
ability to generate revenue. The SQM Board of Directors will meet
within two weeks of receipt of a written notice to review and
evaluate the documented concern; and
Any capitalized term not defined herein shall have the meaning set forth in the
SPA.
TECHTEAM GLOBAL AB
By /s/ Christoph Neut
------------------------------------------
Name: Christoph Neut
Title: Director
By /s/ Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxx Xxxxx-Xxxxxxxxx
Title: Director
SQM NORDIC AB
By /s/ Sven-Xxxx Xxxxxx
------------------------------------------
Name: Sven-Xxxx Xxxxxx
Title: Director, Chairman of the Board
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
50
